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14 October 2014

Diane Roark Battle with NSA by James Risen

The entire book is essential reading. Cryptome review:

Risen, James. Pay Any Price: Greed, Power, and Endless War. Houghton Mifflin Harcourt. Kindle Edition. Published 2014-10-14.


People like Diane Roark. She was perhaps the most courageous whistleblower of the post-9/11 era, and yet her story has never been fully told. She fought a lonely battle against the most powerful forces unleashed in Washington in the global war on terror. She has never received the recognition she deserves.

Roark’s story also explains why, years later, Snowden felt that he had to go outside the system to let the American people know just how much the NSA’s domestic surveillance programs had grown since the early days after 9/ 11, when the Bush administration first launched the NSA’s warrantless wiretapping operation. Roark tried to work within the system, tried to go through the right channels . She was persecuted as a result.

Roark’s story offers the most in-depth and personal look at the rise of the NSA’s domestic spying program ever provided, and explains how America allowed its most powerful foreign intelligence service to turn its tools on the United States. It is a lesson to remember as the government cracks down on people like Edward Snowden at the same time that the NSA continues to expand its spying on the digital lives of American citizens.


Diane Roark was a staffer on the House Permanent Select Committee on Intelligence, assigned to handle oversight of the NSA. Born on a farm in Oregon in 1949, Roark had graduated from Catholic University in Washington, earned a PhD in political science from the University of Florida, and then began working for the government in 1981 when she joined the Energy Department. She rose quickly over the next few years, moving first to the Department of Defense and then the National Security Council at the White House in the Reagan administration. She had been at the House committee since 1985. By the late 1990s, her oversight work on the NSA had made her increasingly skeptical of the agency and its hodgepodge approach to coping with the digital revolution. The NSA had no strategy to make sure that its technical research would provide useful tools for its intelligence operations.

“There wasn’t any coherent approach to dealing with the Internet and the digital age,” recalled Roark. “Everybody just did what they were interested in . There was a big separation between the technical and the operations people, and the technical people didn’t seem to care about whether what they were doing helped the operations people. Nobody tracked how they were spending their money. It was pretty bad.”

Worse, Roark realized that the NSA didn’t really want to change. “They were so used to believing that they were ahead on technology, they didn’t realize that they had fallen behind. There was just about no relationship between the NSA and Silicon Valley at that time. They had extreme insularity. I was really alarmed . But they just kept saying we are okay, just give us money and everything will be okay.”

A massive computer crash at the NSA that lasted for three days in January 2000 only increased Roark’s skepticism, and made her realize that the agency had to undergo fundamental change.

Her doubts made Roark a natural ally for a brilliant maverick like Bill Binney. She had first met him when Binney briefed her on the SARC’s work. She had been impressed and stayed in touch with him as she began to investigate the NSA’s weaknesses. And so in his battle with NSA management to save Thin Thread in the years just before 9/ 11, Binney decided to turn to Roark for help.

After Binney briefed her, Roark became excited by Thin Thread’s potential, and she began asking top NSA officials uncomfortable questions about the program’s status. She was frustrated that the program had not been used before the millennium, when there were reports of possible terrorist plots.

She also began to look more closely at Trailblazer. She realized to her horror that the NSA liked Trailblazer so much in part because it was designed to try to connect the agency’s old, existing analog technology to the new digital revolution. Roark insisted on briefings from Trailblazer managers and came away convinced that the program was doomed to become a costly failure.

“Trailblazer was supposed to build an Internet software-based system on top of an analog hardware system, and it just wasn’t going to work,” she recalled. “They had always felt comfortable with their existing systems. They wanted to use pre-Internet technology for the Internet age. I told them right away that would fail. It was just common sense.” (Roark proved prescient. Years later, the NSA abandoned Trailblazer. After spending billions of dollars on the program’s development, the agency was finally forced to admit that it would not work.)

By early 2000, Roark’s intervention began to infuriate NSA Director Michael Hayden. He had already decided to go with Trailblazer and SAIC over Thin Thread, and he wanted Congress to give the agency the billions of dollars that Trailblazer would demand, no questions asked. He certainly did not want to have to explain himself to some lowly congressional staffer.

Hayden suspected that it was Binney who had been feeding Roark information, and so he called Binney on the carpet, accusing him of insubordination. He then issued an agency-wide directive to make sure that no one else tried to go around him to Congress again. In an April 14, 2000, message to the NSA workforce, Hayden demanded loyalty, compliance, and silence. He made it clear that he considered Congress the enemy, and that giving congressional overseers any unfiltered information was an act of betrayal.

“Some individuals, in a session with our congressional overseers, took a position in direct opposition to one that we had corporately decided to follow,” Hayden wrote. “This misleads the Congress regarding our Agency’s direction and resolve. The corporate decision was made after much data gathering, analysis, debate and thought. Actions contrary to our decisions will have a serious adverse effect on our efforts to transform NSA, and I cannot tolerate them. I have dealt with the people involved. . . . This was a disregard of decisions we had made together and, as such, could not be tolerated.”

“I do not expect sheepish acquiescence,” he added , “but I do expect that problems necessitating course corrections will be handled within these walls. I must insist on all of us having the personal discipline to adhere to our corporate decisions, including those with which we disagree.”

Binney’s efforts to go around Hayden effectively ended his career at the NSA. His lobbying campaign for Thin Thread was now met with deaf ears throughout the entire agency, and the program stalled and then languished, despite Roark’s continued pushing. Binney stayed on for another year, but by the fall of 2001, he and two others from the SARC— Ed Loomis and Kirk Wiebe— had had enough. They decided to retire together to start their own company . If the NSA didn’t want Thin Thread, maybe they could sell it on the open market.

When Bill Binney had been frustrated by the NSA’s rejection of Thin Thread before 9/ 11, he had turned to Diane Roark, and it had cost him his career. Now, after 9/ 11, Binney realized that the NSA was taking the key component of Thin Thread—Mainway— and perverting its use in an unconstitutional program. And so he turned to Roark once again. Not long after Randy Jacobson first told him about the NSA’s decision to start spying on Americans, Binney called Roark and told her that he needed to meet with her, without going into any details on the phone. After work, he drove to her house in Hyattsville, Maryland, a few miles from NSA headquarters . He then told her what he had learned about the secret NSA warrantless wiretapping program.

After listening to Binney, Roark believed strongly that the operation he had just described violated the Constitution. She also knew that it went against the core principles of the NSA. Ever since the Church Committee investigations of intelligence abuses and the reforms that followed in the 1970s, the NSA had been explicitly barred from spying on Americans. The idea that the NSA only looked outward, not inward on Americans, had become deeply ingrained in the agency’s culture. But now, Binney was telling Roark that the agency was secretly violating its most fundamental directive.

At first, Roark was sure that this had to be some kind of rogue operation, completely unauthorized by either Congress or the Bush administration. “What he told me shocked me,” recalled Roark. “I thought this was a rogue operation, I couldn’t believe this was approved, because it was clearly illegal and unconstitutional. The big thing was that the protections had been removed. NSA had been rigorous on protections before that.”

Roark knew she had to do something about it. What she didn’t realize was that her efforts would turn her into a pariah in official Washington.

Diane Roark had no experience as a whistleblower. During her career conducting congressional oversight, people had always come to her to report problems, rather than the other way around. And so when Binney told her about the NSA’s warrantless wiretapping operation, she did what came naturally—she reported it to the House Intelligence Committee. She was certain no one on the committee knew about it.

Roark wrote a memo describing what she knew about the wiretapping program and submitted it to Tim Sample, the Republican staff director of the committee, and his Democratic counterpart, Mike Sheehy. Sample reported directly to the chairman of the committee, Porter Goss, a Florida Republican congressman and former CIA case officer who later became CIA director. Sheehy worked for Nancy Pelosi, a California Democratic congresswoman who later became Speaker of the House but who was then the ranking Democrat on the intelligence committee. Roark wrote that she wanted to warn the committee’s leaders from both parties that an illegal operation was under way at the NSA.

Roark was confident that her memo would be met by outrage by the congressional leadership; instead, it was met by stony silence. After reading her memo, Sheehy meekly replied that, while he did not know anything about it, this NSA spying operation must explain why Goss and Pelosi had recently been called to a secret meeting at Vice President Cheney’s office . He then dropped the subject and did not talk to Roark any further about it.

Sample’s response was even more chilling. He had obviously talked to Goss about Roark’s memo. Sample admonished her to drop the matter, and to stop talking about the NSA program. She was not to tell anyone else what she knew, Sample demanded, not even other staffers on the House committee. Roark now realized that she and Binney had not stumbled upon a rogue operation but rather on an unconstitutional domestic spying program approved at the highest levels of the government and sanctioned by at least some congressional leaders. That knowledge only made her more determined to stop it.

Despite the warning from Sample not to talk with anyone else on the committee about the program, she privately warned Chris Barton , the committee’s new general counsel, that “there was an NSA program of questionable legality and that it was going to blow up in their faces.” In early 2002, Roark also quietly arranged a meeting between Binney, Loomis, and Wiebe and Rep. Richard Burr, a North Carolina Republican on the House Intelligence Committee. Binney told Burr everything they had learned about the NSA wiretapping program, but Burr hardly said a word in response. Burr never followed up on the matter with Roark, and there is no evidence he ever took any action to investigate the NSA program. He was later elected to the U.S. Senate.

After getting nowhere with Burr and being shut down by Sample and Sheehy, Roark finally began to realize that if she was ever going to stop the illegal operation, she was going to have to go outside of the House committee, her institutional home. That meant that she was going to have to start taking risks. As she reached out to her network of contacts throughout the government, she gradually realized, to her horror, that there was a cover-up under way to protect the NSA’s illegal operation, and it involved far more people than she could ever have imagined—including many she knew and trusted.

Roark first met with a former senior NSA executive who had been trying to help her improve her relations with Hayden and the rest of the NSA’s top management. When Roark told the former official about the warrantless wiretapping program, he seemed shocked and agreed to talk with NSA officials about it. But Roark never heard from him again.

Roark then tried to set up a meeting with U.S. District Court Judge Colleen Kollar-Kotelly, who was also the chief judge of the so-called FISA court, the secret Washington-based federal court that was supposed to authorize electronic surveillance in national security cases inside the United States. Since the purpose of the Bush administration’s warrantless wiretapping program was to avoid the legal process established by the Foreign Intelligence Surveillance Act of 1978— and to skirt the secret court established by that law— Roark assumed that Kollar-Kotelly would be outraged when she learned about the secret program. So Roark called Kollar-Kotelly’s Washington office and left a message with her secretary, identifying herself and asking for a meeting to discuss “an illegal NSA program.” The judge’s secretary called Roark back to tell her that the judge could not meet her or discuss the matter with her. Chillingly , the secretary added that the judge had called the Justice Department to inform officials there that Roark was asking questions, and that Roark should expect a call from a Justice Department lawyer. Roark was horrified and believed that Judge Kollar-Kotelly had betrayed her. Later, a Justice Department lawyer did call Roark, but, suspecting a trap, she refused to talk to him. What Roark did not realize was that Kollar-Kotelly had been told about the program by the White House, and she had agreed to keep the fact that the NSA was going around her own court a secret, even from the other judges on the court. When the NSA program later became public, one of the other FISA court judges, James Robertson, resigned in protest.

Next, Roark approached Charles Allen, a legendary figure in the CIA and one of the few top CIA officials who had displayed genuine interest in the NSA and its problems over the years. Over lunch, Roark told Allen about the warrantless wiretapping program, and said that she believed the operation was illegal. Allen said nothing, and by the end of the lunch, Roark realized that Allen already knew about the program and had not objected to it.

In perhaps her most naive move, Roark next called David Addington , an old acquaintance from their days working together on the House Intelligence Committee. Addington had long since left the House committee and become one of Vice President Dick Cheney’s most powerful aides. From his post at Cheney’s right hand, Addington had become one of the architects of the Bush administration’s policies in the war on terror and was a fierce advocate for the NSA domestic spying program.

Roark could not reach Addington personally, so she left a voicemail message for him at the White House, telling him that it was very important that they meet, that she had been handling the NSA account for the House committee, and that she was very troubled by something that had happened post-9/ 11. Addington never called back.

Frustrated by her inability to stop the NSA program and depressed by discovering that so many people she knew were protecting the secret, Roark decided to retire from the House committee in April 2002. But she wanted to make one more push to stop the NSA program. On March 20, 2002, just before she left the committee, she arranged to have breakfast with committee chairman Porter Goss. After small talk, Roark brought up the warrantless wiretapping program. She told Goss that she knew that he must have been briefed about the program, but she said she wanted him to know that the operation was of “questionable legality” and was unsustainable . “This cannot go on forever,” she told Goss. “It’s going to leak and the committee is going to look bad” for not trying to stop it, she warned him.

Haltingly, Goss defended himself, saying that he had not been allowed by the White House to have any staff with him during the secret briefing that he and Pelosi had received on the program, adding that he had also not been able to receive an independent legal review. He said he had accepted the White House’s assurances of its legality, and instead had tried to evaluate the program purely on national security grounds. Roark then told him that the NSA had no reason to remove the protections for American citizens from the collection system. She said those protections could even help make the intelligence collection more efficient, and urged him to try to get the NSA to restore them.

Goss agreed that the secret program would eventually leak, and that it would be bad for the committee. He added that the Bush administration’s repeated extensions of the NSA program— the White House and Justice Department were reauthorizing it every forty-five days—were beginning to worry him. Roark passed on information she had recently learned, that the NSA had already doubled the number of large computer servers devoted to the wiretapping program, increasing the program’s scale. Yet only a small number of NSA analysts were assigned to sift through the massive amount of data because top NSA officials were trying to minimize the number of people who knew of the program’s existence. As a result, Roark told Goss, the Bush administration was taking a huge legal risk to operate the program, but it was not being used effectively.

Roark made an impression on Goss. That same day, Goss went out of his way to publicly praise Roark’s work, when he took to the House floor to mark her retirement and laud her aggressive approach to conducting oversight of the NSA: “If it were not for the efforts of Ms. Roark, I do believe that our committee’s efforts to oversee and advocate for NSA would have been much less effective, and for that she has my personal thanks,” he said.

“Recently,” Goss added, “one of the senior managers within the community commented on her performance by saying that our staff is very aggressive in their oversight and has a very serious and in-depth knowledge of our programs, sometimes a better understanding than some of the senior managers do. I think that this is the type of oversight capability that the American people are entitled to and should demand.”

Secretly, Goss also began asking the NSA more questions about the warrantless wiretapping program. Goss later told Roark that Hayden did not like the fact that Goss was starting to press him.

Just five days after her meeting with Goss, Roark decided to go to Hayden directly, and she had the first of two meetings with the NSA director to discuss the domestic spying program. Over the course of their two secret meetings, Hayden and Roark engaged in a fierce debate over the NSA program— the kind of debate that the Bush administration was desperate to avoid having in public.

Roark used a pretext to get the first meeting with Hayden, but he was a step ahead of her. As soon as she arrived, he quickly raised the issue of the warrantless wiretapping program because Goss had already told him that she opposed it. Hayden defended the program’s legality, claiming that it had been endorsed by lawyers “from three branches,” and specifically cited David Addington.

Yet for Roark, it was their second meeting that was far more memorable and dramatic. By that time, Roark knew more about the NSA program and was better prepared to challenge Hayden.

Hayden probably suspected that Goss’s increased questioning about the program had been driven by Roark, whom he had not trusted since the battle over Thin Thread and Trailblazer. So, in July 2002, after she had already retired from the House committee, Hayden called Roark and asked her to meet him at NSA headquarters.

Taken aback, Roark called Goss for his advice. He encouraged her to meet with Hayden “because you both speak the same language.” There was tension in the air as soon as Roark arrived in Hayden’s office at NSA headquarters on July 26, in part because of the power imbalance between the two . Hayden was an air force general, the director of the largest agency in the U.S. intelligence community, and a confidant of Bush and Cheney. By contrast, Roark was merely a government retiree. But from Hayden’s perspective, Roark was a retiree who knew too much.

They first went over old ground— the contracting war between Thin Thread and Trailblazer— but soon launched into a detailed discussion of the domestic surveillance program. Roark began by asking Hayden why they had taken the protections for U.S. citizens off the Mainway system, but he refused to answer. She repeated her question. Why did they remove the protections? Finally, Hayden blurted out the harsh truth. “He said we didn’t need them because we had the power,” recalled Roark. “He wouldn’t look me in the eye when he said it.”

“I said that the protections would not hurt and might even assist analysis by making it more rules-based and automated, especially since only a very small number of analysts were cleared for the program and its massive amounts of data,” Roark told Hayden, according to notes she kept of the meeting. She had raised the same issue in their meeting in March, but it was clear to her that Hayden had not followed up to get more information on her arguments.

“I pushed hard and repeatedly about why he had dropped the protections” for American citizens. “He avoided answering until finally he said again that they didn’t need them because they had the power.” Roark was stunned by Hayden’s brutally candid answer.

Roark then told Hayden that she had heard that the domestic surveillance program was already expanding, and Hayden told her it was true. This expansion, coupled with what Roark had previously heard about the doubling of the number of computer servers assigned to the program, indicated to her that the NSA was heading on a path toward unleashing its full surveillance powers on the United States. In her unclassified notes from the meeting, she said that Hayden confirmed that additional forms of data collection were taking place. She then replied that the expansion meant that restoring protections for American citizens was more important than ever.

Prodded further by Roark, Hayden admitted that “we are not in the business of minimizing U.S. citizens. ” That meant that the NSA was now in the business of spying on Americans. She then asked Hayden how long the program was going to run and when it would end. He shook his head no and said, “It is now among us.”

Roark also pressed him on the limits of the program , and Hayden suggested that the only real limit had been imposed by Rep. Nancy Pelosi in exchange for going along with the program and maintaining her silence about it. Hayden told Roark that “Pelosi had repeatedly warned him not to go beyond the CT [counterterrorism] target, and for now they were adhering to that.” In other words, the Bush administration and NSA eventually wanted to use the domestic spying program for purposes that had nothing to do with the global war on terror.

Roark asked him if he had a court order approving the program, and Hayden said no. Roark countered that if the NSA received court authorization, it would be much easier to disseminate the data throughout the intelligence community for wider analysis and more efficient use. But Hayden again said “that they did not wish to draw attention” to the program by seeking legal authorization either from new congressional legislation or through the courts. Hayden told her that the lawyers had approved the warrantless wiretapping program based on the president’s wartime powers as commander in chief. He added that even if the secret program ever became public , he would still “have the majority of nine votes.” Roark took that to mean that Hayden believed that the Supreme Court would back him and the Bush White House in a constitutional showdown over the program.

”I insisted that he needed a court order, that opinions about the constitutionality and SCOTUS votes are simply opinions, not fact, and he was placing himself and his agency at great risk. He again demonstrated supreme confidence the powers were there. He realized it would leak, but believed he would come out looking well, and indeed would like to reveal parts of it himself.”

Finally, Hayden explained why he had really asked Roark to his office. He told her that he wanted the program to run as long as possible, that he wanted more time. In other words, he wanted Roark to keep quiet about the program and not leak its existence. Roark looked back at him and quietly told Hayden that she was not going to go to the press. She had no intention of divulging what she knew about the wiretapping program to a reporter.

But that was not good enough for Hayden. He said he did not want her talking to any members of Congress about the program, either. Roark realized that Hayden considered providing information to Congress a leak. He wanted knowledge of the program’s existence to be limited to the few congressional leaders who had already been officially briefed. He insisted that he was confident he was “well within constitutional powers.”

Roark left Hayden’s office more alarmed than ever, and found his statement that he believed that the Supreme Court would go along with the NSA program particularly chilling. Roark decided that she needed to try to get to the Supreme Court before Hayden.

Bill Binney and Kirk Wiebe told her that they knew a government contractor who had mentioned to them that he knew the daughter of Supreme Court Chief Justice William Rehnquist. So Roark took a chance. Using official stationery from the House Intelligence Committee to help verify her credentials, Roark wrote a note to the chief justice, stating that she wanted to meet to tell him about an NSA program that appeared to be unconstitutional. She then arranged for the contractor to hand deliver the letter to Rehnquist’s daughter with instructions for her to give it to her father. Roark never heard back from Rehnquist.

Increasingly depressed, she realized that she was fighting the entire Washington power structure . She had gone to all three branches of government— Congress, the White House, and the courts— and had discovered that there was a conspiracy of silence among the nation’s most powerful public officials to protect an unconstitutional operation. “It was very clear to me that there were all these people who had signed over their lives, and that they had pledged not to talk about it.”

Roark tried one last time. In September 2002, she joined with Binney, Wiebe, and Loomis to file a formal complaint with the Defense Department’s inspector general about the NSA’s decision to go with Trailblazer over Thin Thread, accusing the agency of wasting taxpayer money on Trailblazer. When they met with investigators from the inspector general’s office to discuss their complaint in detail, Roark asked Binney and the others whether they wanted to bring up “the other issue”— the NSA’s domestic spying program. Binney shook his head no, and Roark dropped the matter.

She had reached a dead end. In 2003, she moved back to her native Oregon, tried to work with Binney, Wiebe, and Loomis to start a new company to commercialize the Thin Thread technology, and finally settled into retirement. She was still depressed that she had not been able to stop the NSA program, but she had abandoned her efforts to raise the alarm.